September 2004

Sewer service laterals: Whose responsibility is it to mark the location?

Burt WilliamsUtility Construction CoordinatorCity of Mesa, Arizona

Recently, much has been discussed and written about the locating of sewer service laterals. At a recent Common Ground Alliance Best Practices Meeting, the committee agreed to develop a task team to examine, research, and hopefully address/resolve this issue. My thought is they'll quickly find out, as we did on the local level, that there are far too many opinions on exactly whose responsibility it is to locate this portion of the facility.

Within the greater metropolitan Phoenix area, the majority of cities would conclude it's not their responsibility. Within the City of Mesa, our engineering staff states, "It's not ours!" Our wastewater repair crews would state, "We're tired of contractors damaging the facility and we're called to repair it!" Our residents and customers would say, "I haven't a clue where it is, as long as it's flowing, that's all I need to know." Our excavating contractor customers would say, "Look, we don't want to damage the facility, nor do we want the problems, so just have someone mark the location of the thing so as not to delay our project and enable us to move on!"

Whose responsibility is it then to mark the location? At the City of Mesa, the decision to mark the location of the lateral has been in place for about five years. The philosophy behind the decision was multifold: (1) Typically the homeowner does not know the location of the lateral service; (2) It is typically the city that maintains the records containing this information; (3) It is the right thing to do considering the homeowner is the paying customer of the wastewater utility that provides the service (wastewater removal and treatment); and (4) the city controls and restricts access into the rights-of-way (ROWs) and public utility easements (PUEs) through the permitting process.

Therefore, in a win-win approach for both the City of Mesa and the contractors working in these ROWs and PUEs, the city's locating section has taken the lead in attempting to do the best it can in researching available records to identify these locations. Our City Attorney's Office and the reduced number of claims could conceivably be one of the major beneficiaries; however, how do you place a dollar value on claim avoidance and the countless hours of staff time investigating and researching fault and responsibility?

Without extensive research, but with an educated guess, most all city ordinances may read something similar if not close to the City of Mesa's regarding the definitions of public easements, public right-of-way and restricted access to right-of-way permits. To summarize Mesa's ordinance definitions of ROWs and PUEs: "An area of land whereby the city coordinates the locations of public or private improvements, underground or overhead; including electricity, gas, steam, communication, telecommunications, data transmission, cable TV, water, storm drainage (and numerous 'other' utilities)...owned and operated by any person, firm company, corporation, municipal department, or board duly authorized by federal, state, or municipal regulations."

Most cities also have similar codes regarding sewer laterals. Mesa's reads as follows:

(A) No authorized person shall make any connections with or opening into, use, alter, or disturb any public sewer or appurtenance thereof without first obtaining a written permit from the Development Services Department. (2809/Reso. 6567,3766)

(B) Each person making application for a building connection shall obtain a valid plumbing permit from the City as a prerequisite for the approval of the required building connection. All applications for building connections to be constructed by the Development Services Department shall be accompanied by the current fee for such work. (2809/Reso. 6567,3766)

(C) The number, location, manner of connection, and size of all building connections shall be subject to the approval of the Development Services Manager. (2809/Reso. 6567,3766)

(D) The Development Services Department shall keep a record of all building connections made and the purpose for which they are to be used, together with the name of the owner of the property, the owner's agent, or a representative. (2809/Reso. 6567,3766)

(E) The property owner shall be responsible for the cleaning, unstopping, maintenance, and repair of the building connection piping serving the property from the owner's home or building to the public sewer, except as provided in Subsection (F) of this Section. (2809/Reso. 6567)

(F) Where the correction of a stoppage requires the repair or replacement of a damaged or broken section of the building connection and the damaged or broken section is located off-property in a street or alley, the Utilities Department shall make the repair or replacement. (2809/Reso. 6567)

As identified in section "E," the contention could be made that when the authors of this particular section of code referred to "responsibility," one-calls, damage prevention and locating issues were not on their minds. Rather, the maintenance and cleaning of lines to the main was their primary contention and first priority.

Certainly, a less-than-proactive approach could be to sit back and allow the courts to shake things out. A recent case has already been heard in the State of Colorado, Court of Appeals. In the case of Wycon Construction Company (a corporation, Plaintiff-Appellant) v. Wheat Ridge Sanitation District (a quasi-municipal corporation, Defendant-Appellee), April 8, 1998:

Underground facilities construction contractor brought action for declaratory judgment that municipal sanitation district had statutory duty to mark individual sewer service lines in public thoroughfare before contractor commenced any excavation work. The district Court of Jefferson County, Michael C. Villano, J., entered judgment for district, and contractor appealed. The Court of Appeals, Plank, J., held that the district had duty to mark individual sewer service lines before any excavation of public thoroughfare under Excavation Requirements Article.

The finding further states:

Municipal sanitation district, rather than private property owners, had duty under Excavation Requirements Article to mark individual service lines, as well as main sewer lines and taps, before excavation of public thoroughfare; though both district and property owners fit statuary definition of underground facilities owner, individuals lacked specialized knowledge to mark route through thoroughfare to where their lines attach to main line, and two-day notice from excavator required under statute would be inadequate for most property owners, but not for district, to locate and mark lines.

Also, it won't be long before other states follow the precedent of Oregon's in redefining the responsible party (for marking) from the "owner" to the "operator." Whereby:

"Operator" means any person, public utility, Municipal Corporation, political subdivision of the state or other person with control over underground facilities.

"The intention here was the operator of the sewer main (city or service district) would have the best knowledge of where the lateral would be (they controlled the installation) and they would have the expertise and equipment to perform the locate. If it is an "unlocatable" facility, they could provide the best information available to assist in its location."1

The City of Mesa has taken a proactive approach in assisting "future" locating efforts by initiating an installation standard to identify the actual "house connection" through the use of electronic marker technology developed by 3M.

Summary, conclusion and recommendationCities and/or municipalities need take the leadership role in providing a win-win approach to enabling contractors to get their projects done in a safe and efficient manner. If the contractors are working in, or crossing the right-of-way, these sewer service laterals need to be marked. If the best documentation is limited at best, share that knowledge with the contractor, mark the facility, note the efforts taken, and enter into a mutual understanding or agreement with the contractor as to who is going to be burdened with the repair or costs in the event the line is damaged or cannot be found. In the long run, the homeowner, the city/municipality and the contractor benefit by minimizing damages, limiting claims, minimizing risks, and providing for an effective and efficient process for all parties.